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Complete Text: Alberto Mora discussing torture and cruel and inhuman treatment of detainees in Georgetown’s William V. O’Brien Lecture in International Law and Morality

The Honorable Alberto Mora

The Honorable Alberto Mora

WILLIAM V. O’BRIEN LECTURE

IN INTERNATIONAL LAW AND MORALITY

GEORGETOWN UNIVERSITY

APRIL 30, 2013

ALBERTO MORA

My sincere thanks to Georgetown University for having conferred on me the distinction of being asked to present today the William O’Brien Lecture in International Law and Morality. I also wish to thank my friends, Mark Lagon and Tony Arend, for their support of Georgetown’s decision to extend the invitation.  I am honored to be able to support Mark and Tony’s academic work in my capacity as a member of the Advisory Board of the Master of Science in Foreign Service Program, one of the programs that help make the School of Foreign Service one of the world’s leading centers for international affairs research and study.

The O’Brien Lecture was established by the School of Foreign Service and the Government Department to honor Dr. O’Brien’s many years of distinguished scholarship on war, morality, and the legal dimensions of international affairs.  Dr. O’Brien’s work on these issues not only continues to resonate, but it has also clearly continued to influence the University.  This is evidenced by the leadership in these areas provided by Alex Aleinikoff, my college classmate and good friend, while a member of the faculty and then Dean of the Law Center.  It is also evidenced by the major contributions made by David Cole and Neal Katyal – among many other current or former Georgetown faculty members – to the national debate on the legal issues of the War on Terror in their roles as lawyers, scholars, and public intellectuals.

Today, my focus will be on the self-inflicted and still-unhealed wounds our nation has suffered from our decision to adopt torture and cruel, inhuman, and degrading treatment as weapons of war.  I’ll cover briefly what we did; how and why we came to do so; the damage to our country that resulted and continues; and our accountability, or lack of it, for our actions.  As I say, our national wounds are still unhealed.  In large measure this is because we have not yet assembled the full historical record, we have not yet grasped the full consequences of our actions, and we have not yet even begun to address the unavoidable issue of accountability.

Before turning to the principal topic, however, there are two preliminary issues to discuss.  Both issues inform how I address the larger issue of detainee treatment in the War on Terror.

The first preliminary issue is the distinction between torture, on the one hand, and cruel, inhuman, and degrading treatment, on the other.  As we know, there is a legal distinction between torture and cruelty.  Cruelty is legally considered the lower level of abuse and the distinction between the two is critical to the application of criminal law.  Yet cruelty can be as effective as torture in destroying human dignity and as destructive medically and psychologically of the person; I consider there to be little or no moral distinction between one and the other.  The debate over the past decade has been hampered by a lack of discipline or even simple awareness about the distinction between the two categories of abuse. This has served to muddle public understanding.  The controversy should not be only about whether we tortured, it should be about whether we inflicted cruelty.  In the debate on detainee treatment we have focused too much on torture and not enough on cruelty, thus failing to bring enough moral attention to abuse that we should consider as reprehensible as torture. Fidelity to human rights principles and our existing laws requires that the application of all pain – not only severe pain – be prohibited.

The second preliminary issue is to identify the strategic objectives of the United States in the defense of our nation.  In my view there are two, and they are the same today as they were in the immediate aftermath of September 11.  The first strategic objective is to defend the safety of our lives and the security of our territory.  The second strategic objective is to defend our values and our way of life those values helped create.  Both objectives are equally precious and we pursue them simultaneously.  We neither surrender the security of our people nor do we surrender the flag by abandoning or compromising our values.

Each of us here understands that the United States is defined by our values; each of us understands that one of the characteristics of our free society is that we accept a greater measure of risk from those internal and external enemies who may wish to do us harm; and each of us understands that the challenge of defending our freedom has never been without cost.  Since 9/11, thousands of men and women, both civilian and military, have put themselves at risk and in some cases sacrificed their lives at home and abroad defending our freedoms.  Those sacrifices don’t cause us to question or alter our values; instead, they fuel our determination to treasure them even more.

Everyone here will be aware that there have been occasions during our history – usually during wartime or other times of danger – when our nation has mistakenly transgressed our laws and values in pursuit of security.  Such excesses occurred during the Civil War, World Wars I and II, and the Cold War.  We all recall with shame and revulsion the internment of U.S. citizens of Japanese ancestry during World War II as one such historical example.   And we all recall how these patently illegal internments were found to be lawful by the Supreme Court in 1944 in its Korematsu decision.

But, as many if not enough Americans fully understand, our own generation has made our own mistakes.  In ways not compelled by the 9/11 terrorists, we also departed from our laws and values during the War on Terror and, by doing so, we damaged them.  The greatest damage came from our embrace of cruelty.  Our fundamental mistake was in forgetting the wisdom in Albert Camus’ observation that a nation fighting for its values – as we have fought for our values in the War on Terror even if we sometimes lost sight of this strategic objective – must take care that it not kill those values with the very weapons used in their defense.

Whatever else may be said in the future about this war, it is historically significant because we as a nation – despite our laws, values, and traditions – consciously applied cruelty against captives and sought to amend or reinterpret our laws so as make this – which was illegal – legal.  What Korematsu signifies for World War II, the decision to apply waterboarding to our captives represents to the War on Terror.

I make this point because each time we applied cruelty, each time we hold open the possibility that we may apply cruelty again, each time we fail to render a full accounting of our actions, each time we fail to hold those responsible for the application of cruelty accountable, and each time we fail to provide a remedy for those who were its victims, we acted or act not only contrary to values, but also to our strategic interest.

I.  DID WE TORTURE?

Did the United States torture?  Indisputably.  We did so both directly and by outsourcing torture through extraordinary renditions.  The evidence is massive, deep, and no longer deniable.

Here’s how we waterboarded Abu Zubaydah, according to journalist Kurt Eichenwald in his book 500 Days:

Zubaydah was brought into a room and strapped down on a gurney, which was leaned back about fifteen degrees.  After Zubaydah exhaled, leaving his lungs collapsed, one of the interrogators held a black cloth against his mouth while another poured water from a plastic bottle onto his face.  The liquid flowed into his mouth and nose; the cloth acted like a one-way valve, allowing water to run in but preventing Zubaydah from coughing it out.  The fluid filled his head, sinuses, and throat.  Even though, because of the incline of the gurney, no liquid could enter his lungs, Zubaydah sucked in the water as he struggled to breathe, experiencing an uncontrollable sense of impending death.  He was drowning man who could not drown.   (p. 338.)

This was torture.

And here’s how we treated Mohammed al-Qahtani, the detainee believed to be the “Twentieth Hijacker”.  According to journalist Jane Mayer:

Qahtani had been subjected to a hundred and sixty days of isolation in a pen perpetually flooded with artificial light.  He was interrogated on 48 of 54 days, for eighteen to twenty hours at a stretch.  He had been stripped naked; straddled by taunting female guards; …forced to wear women’s underwear on his head and to put on a bra; threatened by dogs; placed on a leash; and told that his mother was a whore.  [He] had been subjected to a phony kidnapping, deprived of heat, given large quantities of intravenous liquids without access to a toilet, and deprived of sleep for three days.  [At one point,] Qahtani’s hear rate had dropped so precipitately, to thirty-five beats a minute, that he required cardiac monitoring.

This was torture, too.  Indeed, in 2009 the former Army General Counsel and then-Convening Authority for the Military Commissions, Susan Crawford, dismissed all war crimes charges against Qahtani based on her official determination that he had been tortured.  She stated:  “We tortured Qahtani.  His treatment met the legal definition….”

And, once again, back to Zubaydah.  Here is how the Department of Justice’s Office of Legal Counsel, in an astonishing memorandum dated August 1, 2002, responded in part to the CIA General Counsel’s request for legal advice as to how he could employ insects in Zubaydah’s interrogation:

In addition to using the confinement boxes alone, you also would like to introduce an insect into one of the boxes with Zubaydah.  As we understand it, you plan to inform Zubaydah that you are going to place a stinging insect into the box, but you will actually place a harmless insect in the box, such as a caterpillar.  If you do so…, you must inform him that the insects will not have a sting that would produce death or severe pain.  If, however, you were to place the insect in the box without informing him that you are doing so, then, in order not to commit a predicate act, you should not affirmatively lead him to believe that any insect is present which has a sting that could produce severe pain or suffering or even cause his death.

As Professor Joseph Lavitt has pointed out, this bizarre passage could have been lifted textually from George Orwell’s book 1984, the principal distinction being that Orwell wrote of the use of rats, not caterpillars, in the torture of the book’s protagonist.  It has not been established that the CIA did use insects during interrogation.  But the passage crystalizes the tenor of the advice consistently given to interrogators and acted upon by many of them during the War on Terror:  You may place as many insects as you wish on the detainee; the insects may sting the detainee as many times as they can; and the detainee can experience endless pain and suffering, just as long as the pain does not reach the level of severe pain and suffering or death. If the OLC gave this advice in good faith, it can only be because they assumed that pain can be modulated with such precision; that there were interrogators and medical professionals in attendance trained to modulate the pain skillfully; and that part of their skill included the ability to gauge scientifically how a given interrogation technique would affect any detainee at any given moment, regardless of differences in his medical condition or tolerance to pain.  But we know none of this is true – pain cannot be modulated with such precision, and never could; those interrogators and doctors skilled in the exquisitely fine application of torment don’t exist, and never did; and we can’t really know how the same interrogation techniques will affect different detainees.  When mere pain spiked into the realm of severe pain, who could have detected and documented it?  And what happens then – to the interrogators, and the doctors, and the lawyers, and the policy-makers who miscalculated?

In these cases and these ways — and in many more cases and ways — the United States tortured.  This was the conclusion of the International Committee of the Red Cross, which, after interviewing detainees held in Guantanamo, informed the U.S. government in February 2007 that its treatment of certain detainees held there constituted torture. This was the conclusion reached more recently by the Constitution Project’s bi-partisan Task Force on Detainee Treatment, which released its compilation of the evidence in a comprehensive, two-year, 600-page Report issued on April. And this is the conclusion that any impartial observer is compelled to reach after a review of the facts.

II.  WHY DID WE TORTURE?

How did our Nation come to use torture in this war?

This policy originated in the aftermath of 9/11.  At Guantanamo and elsewhere, U.S. authorities held in detention individuals thought to have information on other impending attacks against the United States.  It was believed that, unless this information was obtained, more Americans could die.  Spurred by this belief, our government made legal and policy decisions providing, in effect, that for some of those detainees labeled as “unlawful combatants,” harsh interrogation methods could be applied.  Many of the methods approved and applied constituted cruel, inhuman, and degrading treatment – a degree of abuse that the Eighth Amendment and the constitutional jurisprudence of the Fifth and Fourteenth Amendments have long outlawed.  And, as we have seen, torture was also applied.

In my opinion, the authorization to apply torture and cruelty rested on six beliefs or assumptions.  The first five are clearly false but the sixth is still at issue.  These six assumptions are:

First, the use of harsh interrogation techniques was necessary if our nation was to be protected against further loss of life.  This was false.

Second, no law prohibited the application of cruelty.  Thus, the government could direct the use of cruelty as a matter of policy depending on the dictates of perceived military necessity.  This, too, was false.

Third, the President’s constitutional commander-in-chief authorities included the unabridged discretion to order torture and other forms of abuse.  Any existing or proposed law or treaty that would purport to limit this discretion would be an unconstitutional limitation of his powers.  False.

Fourth, the use of cruelty in the interrogation of unlawful detainees held abroad would not implicate or adversely affect our values, our domestic legal order, our international relations, or our security strategy.  False in every particular.

Fifth, if this abuse were disclosed or discovered, virtually no one would care.  Because, to the contrary, many people in fact cared intensely, this too was false.  And,

Sixth, if the abuse were discovered, no one responsible would be held accountable.

Whether this last assumption will be proven true or false is still problematic.  It is difficult to envisage that our system of justice would fail to respond to a crime such as torture, but so far it has. To this point, the assumption has been proven correct.

The treatment meted to Zubaydah and Qahtani illustrates the results of the policy that ensued from these false assumptions:  not all unlawful combatants in custody were mistreated, but it is enough to say that some were; not all were treated as badly as Zubaydah and Qahtani, but many were treated just as badly; and not all who were mistreated were abused as a result of official policy, but many were.

The number of those abused is probably greater than the public record, such as it is, currently documents.  In the end, history will ultimately judge what the cause and level of the abuse was for each detainee – whether it was torture or some lesser cruelty – and whether it resulted from official commission, omission, or occurred despite every reasonable effort to prevent the mistreatment.  Whatever the ultimate historical judgment, however, it is established fact that the brutal interrogation of detainees was officially sanctioned and that abuse occurred as a consequence.  No matter how circumscribed these policies were, or how short their duration, or how few the victims – for as long as these policies were in effect our government had adopted and practiced what only can be labeled as a policy of cruelty that included torture.

III.  WHAT WERE THE HARMS?

The application of cruelty and torture harmed and continues to harm our nation’s legal, foreign policy, and national security interests in multiple ways.  I’ll discuss each of these harms.

A.        The Legal Harm

The first harm was to our laws.  The acceptance of cruelty is contrary to and damages our values and legal system by discarding the basic principle that all human beings have the right to be free from cruelty and that the highest purpose of law is to protect human dignity.

Cruelty damages and ultimately would transform our constitutional structure because cruelty is incompatible with the philosophical premises upon which the Constitution is based.  Our Founders drafted our Constitution inspired by the belief that law could not create, but only recognize, certain inalienable rights – rights vested in every person, not just citizens, and not just here, but everywhere.

These rights form the shield that protects core human dignity.  Because of this shield, due process is required; the equal protection of the law is mandated; slavery is outlawed; coerced confessions are prohibited and, if obtained, excluded from use as evidence; the vote is extended to all citizens who have attained their majority; racial discrimination is forbidden; and all men and women are to be treated equally.  Also, and most relevantly for purposes of today’s discussion, the Eighth Amendment prohibits cruel punishment and the constitutional jurisprudence of the Fifth and Fourteenth Amendments outlaws cruel treatment that “shocks the conscience”.  These are just a few of our rights that issue from the foundation of personal dignity.

These rights, to be sure, have been enlarged and gained greater definition during the course of our history.  But to have adopted and applied a policy of cruelty anywhere within this world was to say that our Founders and the successor generations were wrong about their belief in the rights of the individual, because there is no right more fundamental than the right to be safe from cruel and inhumane treatment.

If we can lawfully abuse Zubaydah and Qahtani the way they were abused – however reprehensible their acts may have been – it is because they did not have the inalienable right to be free from cruelty.  And if that is the case, then the foundation upon which our own rights are based starts to crumble, because it would then ultimately be left to the discretion of the state whether and how much cruelty may be applied to each of us or to any person.

The infliction of cruel treatment damages not only the victims, but also the fabric of the law itself in two ways.  It does so because if cruelty is taken out of the law’s ambit and placed within the realm of policy, the scope of the law is then, by definition, diminished.  Also, cruelty violates the important principle of law that Professor Jeremy Waldron terms the “principle of non-brutality.”  He writes:

Law is not savage.  Law does not rule through abject fear and terror, or by breaking the will of those whom it confronts….  [There is] an enduring connection between the spirit of the law and respect for human dignity – respect for human dignity even in extremis, where law is at its most forceful and its subjects at their most vulnerable.  [T]he rule against torture … is vividly emblematic of our determination to sever the link between the law and brutality, between the law and terror, and between law and the enterprise of breaking a person’s will.

B.  The Harm to our Foreign Policy Interests

The second category of the harm from cruelty is to our foreign policy interests.  In sum, the effects and consequences of cruelty were contrary to our long-term and over-arching strategic foreign policy interests, including many of the principal institutions, alliances, and rules that we have nurtured and fought for over the past sixty years.

America’s international standing and influence stems in no small measure from the effectiveness of a foreign policy that harmonized our policy ends and means with our national values.  The employment of cruelty not only betrayed our values, thus diminishing the strength of our example and our appeal to others, it impaired our foreign policy by adopting means inimical to our traditional national objective of enhancing our security through the spread of human rights protected by the rule of law.

From World War II until today, American foreign policy has been grounded in strong measure on a human rights strategy.  We have fought tyranny and promoted democracy not only, or even primarily, because it was the right thing to do, but because the spread of democracy made us safer and protected our freedoms.  In ways that echoed the development of our own domestic legal system, we successfully promoted the development of a rules-based international order based on the rule of law.  Across the world, human rights principles, international treaties and laws – particularly humanitarian and international criminal lawand many domestic constitutions and legal systems owe their character, acceptance, and relevance to our inspiration, efforts, or support.

Let’s look at three examples, out of many, of these foreign policy achievements:

  • First, the Nuremberg Trials.  Nuremberg represents a triumph of American justice and statesmanship that launched the modern era of human rights and international criminal law, treated prisoner abuse as an indictable crime, helped cement the principle of command responsibility, and started the process whereby national sovereignty no longer served as a potential shield to protect the perpetrator of crimes against humanity from the long arm of justice;
  • Second, the Geneva Conventions.  The Geneva Conventions, as do most of the major human rights treaties adopted and ratified by our country during the last century, forbid the application of cruel, inhuman, and degrading treatment to all captives.  Thousands of American soldiers have benefited from these conventions; and
  • Third, the German Constitution.  The Constitution has helped transform a country that helped launch two of the most destructive wars in history into the responsible society it is today.  Its article one, section one, states:  “The dignity of man is inviolable.  To respect and protect it is the duty of all state authority.”  That this should be an element of the German Constitution today reflects credit only on the German nation and its citizens.  However, hat it should have been adopted by Germany in 1949, the year the constitution was first ratified, reflects credit on an American foreign policy that had integrated our national focus on human dignity as an operational objective.

Each of these achievements has returned massive dividends to our nation.  We are all the better for them.  However imperfectly these precedents, rules, or laws may be observed or enforced, they have helped shape public opinion world wide, created global standards of conduct, and influenced the behavior of foreign individuals, groups, and nations in ways that are overwhelmingly supportive of our national interest and objectives.

But we need to recognize that when we adopted our policy of cruelty we sabotaged these policies and achievements.  Consider the following:  Because of cruelty:

  • We rendered incoherent a core element of our foreign policy — the protection of human dignity through the rule of law;
  • We abused the letter and spirit of the Geneva Conventions;
  • We weakened the Nuremberg principle of command responsibility;
  • We damaged he very fabric of human rights and international law and fostered a spirit of non-compliance with both;
  • We fostered the incidence of prisoner abuse around the world;
  • We created a deep legal and political fissure between ourselves and our traditional allies; and
  • We fueled public disrespect for our country around the world, thus hampering the achievement of our foreign policy objectives; and
  • In the case of Germany, we committed actions flatly contrary to its inviolable constitutional requirement to protect human dignity.

None of this has been to our benefit, yet all of these harms were among the costs we suffered when we adopted the policy of cruelty.  These are among the self-inflicted wounds we caused to ourselves when we abused Zubaydah and Qahtani and adopted the policies that permitted their mistreatment and that of others.

C.  The Harm to our National Security

Let me now turn to the third category of harm, that to our national security.  Simply stated, our nation’s defenses were materially and demonstrably weakened, not strengthened, by the policy and practice of cruelty.  Cruelty made us weaker, not stronger.  Not only did it blunt our moral authority, it sabotaged our ability to build and maintain the broad alliances needed to prosecute the war effectively, it diminished our military’s operational effectiveness, and it had adverse consequences on the battlefield.

In the War on Terror, our national security is achieved not solely through military action, but also through the simultaneous use of ideas and communications, political persuasion, intelligence and law enforcement, and diplomacy.  The attacks on the World Trade Center, the Madrid railway station, and the London buses, among many others, evidenced a terrorist ideology that would obliterate human dignity.  Our defense to this assault cannot be solely military.  These terrorist acts emanated from specific ideas that fostered and propagated this cycle of hate — ideas that must be combated by our own ideas and ideals.  Our defense must also consist of rallying to our mutual defense those who share our values and our vision of a humane civilization.

This is not a war we can fight alone.  Our political and military strategy must be geared to building and sustaining a large, unified alliance that cooperates across the spectrum of the conflict.  Yet we will not be able to build this alliance unless we are able to articulate a clear set of political objectives and prosecute the war using methods consistent with those objectives; we will not be able to build this alliance unless we construct with our leading allies a common legal architecture that is true to our shared values; and we will not be able to establish that common legal architecture if were to insist, as we once did, on the discretionary right to apply cruel treatment to detainees.

When our nation adopted our policy of cruelty we compromised our ability to accomplish these national security objectives.  Here are four examples of the strategic damage to our national security that we suffered:

  • First, because the cruel treatment of prisoners constitutes a criminal act in every European jurisdiction, European cooperation with the United States across the spectrum of activity — including military, intelligence, and law enforcement – diminished once this practice became apparent;
  • Second, almost every European politician who sought to fully ally his country with the U.S. effort on the War on Terror incurred a political penalty as a consequence, as the political difficulties of Prime Ministers Tony Blair and Jose Maria Aznar demonstrated;
  • Third, our abuses at Abu Ghraib, Guantanamo, and elsewhere perversely generated sympathy for the terrorists and eroded the international good will and political support that we had enjoyed after September 11; and
  • Fourth, we lost the ability to draw the sharpest possible distinction between our adversaries and ourselves and to contrast our two antithetical ideals.  By doing so, we compromised our ability to prosecute this aspect of the war – the war of ideas – from the position of full moral authority.

All of these factors contributed to the difficulties our nation has experienced in forging the strongest possible coalition in the War on Terror.  But the damage to our national security also occurred not only at the strategic, but also at the operational and tactical military levels.  Consider these following five points:

  • First, according to senior flag-rank officers in our military, the proximate cause of the Abu Ghraib debacle was the legal advice authorizing abusive treatment of detainees that issued from the Department of Justice’s Office of Legal Counsel in 2002;
  • Second, other senior officers maintain that the first and second identifiable causes of U.S. combat deaths in Iraq were, respectively, Abu Ghraib and Guantanamo, because of their effectiveness as symbols in helping attract and field insurgent fighters into combat;
  • Third, at various different points, some allied nations refused to participate in combat operations with us out of fear that, in the process, enemy combatants captured by their forces could be abused by U.S. or other forces;
  • Fourth, at other times, allied nations refused to train with us in joint detainee capture and handling operations, also because of concerns about U.S. detainee policies.  Of course, if you don’t train together, you can’t fight together; and
  • Fifth, our policy of treating detainees harshly could have stiffened our adversaries’ resolve on the battlefield by inducing them to fight harder rather than surrender because of fear of capture, and this could have led to loss of American lives.

Each of these points demonstrates how our policy of cruelty weakened our national security and our defenses.  Whatever intelligence obtained through our use of harsh interrogation tactics may have been, on the whole the military costs of these policies and practices greatly damaged our overall efforts and impaired our effectiveness in the war.

Every military officer I have spoken with on this issue – including dozens of Service Chiefs and other four-star admirals and generals – describe of the authorization to engage in cruel interrogations as contemptible and contrary to our national interest.  The reason for this was captured by in a May 2007 letter by General David Petraeus, who was at the time commander of forces in Iraq, to his troops.  He said:  “Our values and the laws governing warfare teach us to respect human dignity, maintain our integrity, and do what is right. Adherence to our values distinguishes us from our enemy. This fight depends on securing the population, which must understand that we – not our enemies – occupy the moral high ground.”  Petraeus was right, but the policy of cruelty that we adopted at the start of the War on Terror went contrary to his advice.

I’ve spoken of the harms of torture, but was there a benefit?  I don’t see it, but there are many in our country who disagree.  Many are of the opinion that the only criterion by which to decide whether to use torture or not is whether it is effective in yielding actionable military intelligence.  This continues to be the view of many of the architects of the policy of torture in the past administration, who also maintain that torture was indeed instrumental in locating Osama bin Laden and otherwise keeping our country safe.

Are they right?  The weight of the evidence strongly suggests that they are not.  In December 2008, the Senate Committee on the Armed Services concluded in a report entitled “Inquiry into the Treatment of Detainees in U.S. Custody,” which was issued without dissent, that brutal interrogation techniques “damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemy, and compromised our moral authority.”  Such, too, was the conclusion of the Constitution Project’s report.  And this is also the reported conclusion of the Senate Select Committee on Intelligence’s still-classified, 6,000-page report on CIA interrogation, which is likely to be the definitive study on this issue.

But let’s suppose that the claims of those who support the torture polices were true, that the abuse did produce useful intelligence:  would the policies then be justified?  My answer would still be “No” – our values prohibit torture and the net results of its use – as I hope I’ve demonstrated – were overwhelmingly contrary to our national interest.

IV.          ACCOUNTABILTY

President Obama has commendably barred the use of cruel interrogation techniques, but he has said his administration would not further investigate past detention policies or actions.  There have been almost no prosecutions for the use of torture and, judging from current indications, there not likely to be any in the near term.  Similarly, those who allege they were victimized by torture have almost uniformly been barred from gaining access to the courts and obtaining a judicial remedy. It is as if a blanket amnesty shields all those who engaged in the practice of cruelty from the consequences of their actions.

It is difficult to accept this result.  Justice does not allow crimes to go unpunished or victims of deliberate harm to be prevented from seeking a remedy.  We cannot claim to support human rights while at the same time maintain that we are exempt from the consequences of violating those rights or from our own accountability.  We cannot hold others to standards we are unwilling to apply to ourselves.  If human rights are important to us – as they are – and their expanded observance around world to be in our vital national interest – as it is – then we cannot fail to recognize the damage that failing to hold ourselves accountable would continue to inflict.  How do we ask others to hold themselves accountable for torture if we’re unwilling to be accountable ourselves?

I recognize that we do not yet have the sufficient will as a nation to face this issue.  But I think there will come a time when we will.  That time will come when we as a nation more fully accept the truth of how we treated detainees.  We’ve made some progress, but more progress will be needed.  The release of the Senate Intelligence Committee report on CIA interrogations is the necessary next step.  That report will help strip away the veils and the euphemisms and, by doing so, will help bring clarity.  With that more precise understanding of the facts in our possession, we will then be able to turn with greater resolve to the unavoidable and necessary question of accountability.

V.        THE FUTURE

Before 9/11, the national consensus held that neither cruel treatment nor punishment could be applied to human beings.  This was — then — a consensus cemented by the convergence of our national values, our laws, our foreign policy interests, our human rights principles, and even our military doctrine.

Now, there is no longer a consensus.  Now, many Americans are of the view that cruel treatment or even torture may and should be applied against our enemies, or those who may possibly be our enemies, if doing so could make us safer.  And many others who have not yet abandoned our traditional abhorrence of cruel treatment are now asking how much abusive treatment can be applied lawfully to these captives.  What was once unspeakable is now a subject of polite conversation.  Cruelty, once held in disrepute, has been – astonishingly – rehabilitated, tolerated, and even embraced by many.

We know that, if there is another terrorist attack, the numbers of those who support cruelty will rise again.  They will press the case that the national security requires harsh interrogations, and demand that our values yield to the purported dictates of the threat.

This is why we need to restore now the national consensus against cruelty, why we need to revert to a legal standard that clearly outlaws cruel treatment anywhere and defines it as a criminal offense, and why we need to ensure accountability for those who engage in it.

The issue of cruelty cannot be reduced simply to what happens in the interrogation room or to whether some of the information obtained through its application may have had some use.  It is, as Sen. John McCain has said, about who we are as a nation.  It is about remaining faithful to our heritage and constitutional order.  It is about who we wish to become and what kind of world we wish to live in.  It is about protecting human dignity at home and abroad.  It is about mounting the most effective defense to the terrorist threat, a defense that is weakened when we depart from our values.  And it is about our understanding – to return to Camus’ formulation – that cruelty is the weapon whose use would destroy the very values we seek to protect.

My thanks again to the University for inviting to present the O’Brien Lecture and to each of you for being here.

**********************

Alberto Mora served as the General Counsel to the Department of the Navy from 2001-2006 and was an outspoken critic of American policies regarding the treatment of detainees. Mora is currently Vice President, Secretary and General Counsel of Mars, Inc. He previously served as Vice President and General Counsel, International, for Wal-Mart Stores, Inc. He serves on the Boards of Directors Human Rights First and Freedom House and is a member of the Board of Advisors of the MSFS Program at Georgetown University.

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Welcome! Who am I?



Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.